Practice and Procedure


PUBLISHED November 20, 2003

Possession of magic mushrooms was not an offence, under s.5(1) Misuse of Drugs Act 1971, unless there was evidence they had been prepared by the hand of man. Once a jury was directed on the law it was open to them to infer preparation from the evidence.Appeal, with leave of the single judge, against a conviction for possession of a class A controlled drug, namely a preparation that contained psilocybin, contrary to s.5(1) Misuse of Drugs Act 1971. The defendant ('D') was convicted on 3 December 2002 at Bristol Crown Court before HH Judge Campbell Boothman and was fined ?250. On 28 June 2002 D was arrested at Glastonbury and was found to have several resealable plastic bags containing a dried brown mushroom material, which was analysed as psilocybin, more commonly known as magic mushrooms. Cultivation of magic mushrooms and possession was not an offence unless there was evidence of "preparation". At trial an expert gave evidence that he was unable to identify how the mushrooms came to be in the dried state. D appealed the conviction as unsafe as there had been no case to answer. There was no evidence of "preparation" by D and it was therefore inappropriate to leave it to the jury. The prosecution contended that the question of whether the substance was a preparation having undergone the process of preparation was a question of inference, for the jury.HELD: (1) For an offence of possession of magic mushrooms there had to be evidence they had been prepared "by the hand of man", as held in R v Stevens (1981) EWCA Crim 15/4/81. (2) There were no less than 46 transparent plastic bags containing a substance clearly not mushrooms in a natural state but in a dried state and once the jury were directed on the law it was open to them to infer preparation from the evidence.Appeal dismissed

[2003] EWCA Crim 3477